Elder guardianship: A well-oiled machine

Marie Winkelman, 89, had her rights removed a year ago at the request of her stepson-in-law, and is bewildered by the idea that she no longer has access to her own finances. She has hired two attorneys in the fight to have her rights restored, and yet the case drags on with little end in sight. (Staff photo / Thomas Bender)

At 89, Marie Winkelman has long considered herself a fortunate woman — even though she lost her entire family except for one cousin in the Holocaust, was widowed twice and has no children.

Her brave odyssey from wartime Poland to the United States would appear to have ended happily, with a comfortable retirement in Sarasota.

But Winkelman’s faith in a nation that had been kind to her was shaken in July 2013, when she was stripped of her civil rights and declared a ward of the state of Florida.

Now, strangers control her life savings, her worldly possessions and her medical care. The court has ordered a trust company to cut checks from her account for some $635,000 to pay attorneys, guardians and others involved in her case, with many more expenses pending.

A professional guardian receives more than $1,000 a month, at $85 an hour, to coordinate Winkelman’s doctors’ appointments, help with financial transactions and communicate with her cousin and a family friend — who both sought unsuccessfully to free her from a legal status she finds expensive and intrusive.

“I pay for everything, for lawyers, for everything,” Winkelman says. “Unbelievable! They know that I don’t need any of their help. Not that I am so smart — but I can handle certain things.”

Her case is part of an accelerating national social phenomenon that has plunged aging Americans into a sometimes bewildering guardianship system when they are deemed too frail or mentally compromised to make decisions for themselves.

The idea behind guardianship is to protect older citizens. But Florida has become a place where quiet, desperate disasters happen daily, often touched off by a single phone call.

In the middle of an unprecedented national longevity trend, half of all Americans 85 and over are believed to experience significant cognitive decline. Many of them wind up in sunny Florida, far away from sons and daughters — some with enough assets to make them attractive to scammers and cheats, others outliving their savings and utterly dependent on the state.

In response to a pressing need, Florida has cobbled together an efficient way to identify and care for helpless elders, using the probate court system to place them under guardianship.

But critics say this system — easily set in motion, but notoriously difficult to stop — often ignores basic individual rights. Most of it plays out in secret, with hearings and files typically closed from the public.

Even basic documents are hard to find. Because Florida’s court clerks keep records differently, there are no clear numbers on the rise in guardianship cases, and no accounting of how many millions are spent on attorneys, guardians, and medical and financial experts.

But there is no doubt that monitoring elders and tapping their assets is a growth business: In 2003, there were 23 registered professional guardians in Florida, according to the Department of Elder Affairs. Today there are more than 440 — an increase greater than 1,800 percent in 11 years.

Talk to the social workers, guardians and attorneys who run this system, and you hear assurances of their good intentions and diligence in looking after people who have lost their rights to make decisions for themselves.

But from family members and friends caught in the system against their will, stories emerge of a ruthless determination to take elders from their homes and make them conform to a one-size-fits-all process by which their belongings can be sold, and their family and friends shut out — until eventually they are locked away in institutions to decline and die.

The critics call this process “liquidate, isolate, medicate.”

Once activated, this system plunges elders into a legal labyrinth, where they quickly come to depend on the kindness of strangers.

'It’s not fair'

Winkelman has a rich and bubbling laugh that can make a stranger feel right at home in her colorful apartment, where the walls glow with cheerful still lifes, landscapes and portraits she’s painted.

Marie Winkelman. (Staff photo / Thomas Bender)

The security guard at the entrance to the Fountains at Lake Pointe Woods, her nicely tended retirement community in Sarasota, describes her as “one of the nicest residents here.” She dresses with care, keeps her home spotless and is a delightful conversationalist.

But like many her age, she does not remember people well who are new in her life, and muddles dates and plans if she doesn’t have them written down in her neat calendar. She has misplaced keys and money, according to 12th Judicial Circuit Court documents, and suspected they were stolen, causing trouble for her with employees at the Fountains.

Hers is a familiar dilemma in Sarasota, one that concerned adult children might solve by hiring a care manager or in-home help. But the legal process that was set in motion without her knowledge ended in September with a judge’s declaration that she was “partially incapacitated.”

The costly and contentious year-long struggle to have Winkelman’s rights restored ended swiftly, in an all-day hearing that was closed to the public — even though she had requested in writing that it be open.

The judge’s order took away her ability to make decisions about her own health care; to execute any legal contract, including a will; to marry without a judge’s approval, and to manage her own money.

Winkelman is more fortunate than most wards. She has assets — from her own career and two marriages — and supporters who care about her. She also has been allowed to remain in her apartment, and most of the time can act as though she were still in control of her own life.

But the principle still strikes her as wrong.

“It’s very unfair, this whole situation,” she says. “I don’t care so much because at my age, how long am I going to live? But it’s just — it’s not fair.”

'I was lucky'

Winkelman was 17 when her first boyfriend crept over rooftops of the Jewish ghetto in Warsaw, Poland, to take her from home and hide her from the Nazis. Her parents had been reluctant to let her go.

“My mother said, ‘No, she doesn’t know how to cook an egg, even; how would she manage?' ” Winkelman recalls. “He insisted. He said, ‘You don’t know what’s waiting for you.’ My mother said, ‘Oh, the war will be over soon.' ”

Eventually, her family agreed that she should escape. She never saw any of them again.

Without documents, she couldn’t hold a job, and she moved from one hiding place to another. A friend sent her to a Catholic priest, she says, who told her, “You are so lucky: two months ago, a girl almost your age — two years older — died. We have her papers, and you can become her. This is a miracle.”

The Catholic girl’s name was Maria.

“So I was safe for awhile,” Winkelman says. “But it wasn’t so easy, because people started to talk: ‘Where is her family; nobody comes to her; something is wrong.’ Even the Gestapo came once. But I was young, good looking, and they liked me for some reason. I was lucky.”

Searching for relatives after the war, she found only one: Her mother’s sister had given away a baby for safekeeping before she was killed. That cousin is now Alina Koren. She lives in Ann Arbor, Michigan, and Tel Aviv with her husband, Yorem Koren, a noted robotics professor.

The couple intervened in Winkelman’s guardianship case, and Alina was eventually named as “limited co-guardian of the person” — meaning she can participate in decisions about her cousin’s life, but has no control over her finances.

“If you are old and have no money and don’t want to take your medications, nobody cares,” Yorem Koren says. “But if you have money, you wind up in court like Marie. I don’t understand this.”

Winkelman came to the United States in the 1950s, after living and working in Sweden. She moved to Sarasota with her second husband, Murray Winkelman, who died in 1993.

It was that husband’s son-in-law, Robert Szychowski, who started the guardianship proceeding last year. In 2009 she executed documents — at Szychowski’s request, she says — that included a power of attorney, giving him sweeping rights to handle her money; and a revocable trust affirming earlier statements that most of her fortune would go to her husband’s daughters when she died.

Szychowski, reached at his business in Hightstown, New Jersey, declined to comment on the case.

Winkelman says she now regrets signing papers she didn’t understand.

“This was my husband’s family, and I wasn’t very close with them somehow; they lived far away,” she says. “But I liked my husband very much, and anybody who was close to him, I respect them. And they were nice to me; they would send me flowers once in a while, and cards on occasion.”

Marc Ratner, a retired New York businessman, originally from Poland, has known Winkelman since 1956 and was friends with her husbands. He wrote in a letter to the court that she had just been hospitalized with a sodium deficiency before signing those papers in 2009.

Ratner, 93, said in an affidavit that he believes he is the “boyfriend” that Szychowski’s petition for emergency guardianship claimed was interfering with her health and “threatening to take her out of the jurisdiction.” He denied those claims. Ratner has since made repeated trips to Sarasota, trying to free his friend from her entanglement with the guardianship system.

“You can do these things only through a lawyer,” Ratner says. “I don’t know why this is so. The lawyers are being paid from her money that she made with her first husband.”

A matter of days

Sifting through the guardianship case files at the Sarasota County Clerk of Court’s office is a sad exercise that makes it easier to see why the system for removing rights can be such an efficient, even ruthless, machine.

There is the 75-year-old woman with two estranged daughters, whose mobile home was infested with rats.

The 75-year-old man with Parkinson’s disease, wheelchair-dependent, whose caregiver induced him to pay for their gambling cruise.

The 87-year-old woman whose neighbors reported that she was knocking on their doors naked.

But the petition to place Marie Winkelman under guardianship also makes for alarming reading. It contends she has fallen under the influence of a “boyfriend” who advises her against taking medications.

The legal process that strips an individual of every civil right often takes a matter of days. This is because guardianships are a last resort, and usually come to the court’s attention in the form of an urgent scenario, says Anne Ridings, director of guardianship for Lutheran Services of Florida, a nonprofit agency that handles a caseload of about 300 wards in Southwest Florida.

“Most cases are emergent in nature,” she says. “People tend to wait until there’s a crisis, when maybe something could have been done to avoid that crisis.”

(Click the graphic to enlarge)

Anyone can file a petition to determine an elder’s incapacity, which is how the legal process begins. It can be a concerned family member who lives out of state, a case worker for the Florida Department of Children and Families who responded to an anonymous call — even the administrator of a hospital or nursing home, seeking authority for a medical procedure that an elder is refusing or lacks the ability to approve.

According to Florida statutes, after a three-person examining committee — usually a psychiatrist or medical doctor, a nurse and a social worker — visits the elder and completes a report, the next step is to petition for an emergency temporary guardianship.

In practice, the process is often on a fast track, says Ridings.

“You can’t file a petition to the court saying, ‘I think somebody’s incapacitated, in danger and in need of assistance,’ and not at the same time file a petition for appointment of a guardian,” she says. “You have to simultaneously file. A guardian is asked, ‘Are you willing to serve?’ and they go through the screening process fairly quickly.”

In Sarasota County, the circuit court judge in charge of probate cases also handles guardianships, and judges rotate into the position. Judge Deno Economou has been deciding elder guardianship cases for roughly two years.

“I think the concern we have is the fact that Florida is getting more of these people,” he says. “We live longer; we have medicines that keep our hearts running and the blood vessels open.”

But Economou says he doesn’t believe the volume of cases keeps him from fully considering the fate of each prospective ward.

“They’re coming to you and they’re so vulnerable, and you have to be careful because you’re the final gatekeeper,” he says. “Some cases are so obvious; others are tough. They’re taken from their homes because they can’t cook their own meals. You place them in a strange environment and your heart breaks for them.”

Economou also says he has reversed or amended decisions about guardianships when circumstances warrant this.

“If I get a letter from a ward saying, ‘Judge, I feel better; restore my rights,’ I’ve done it a few times,” he said. “We are not closing that door on you. It’s not necessarily forever. You can restore some rights and not others.”

A ward’s court-appointed attorney, however, is generally reluctant to take the step of filing paperwork for the restoration of rights, called a “Suggestion of Capacity.”

Generally the ward — or friends or family — must retain another lawyer, at a beginning cost between $5,000 and $10,000. Coming up with the cash for this retainer can be an impossible barrier, as any assets the ward still possesses are under the guardian’s control.

Florida law has a checklist of 14 rights that an elder may surrender as a result of the guardianship process — including the right to marry, to vote, to manage finances, to determine where to live and to accept medical care. If the elder has capacity to exercise some of these rights, the thinking goes, the guardianship can be limited and less intrusive.

But in the paperwork of a typical case file, the examining committee members simply check all the boxes on the list of rights.

“A full or plenary guardianship should be the very last resort,” says Brenda K. Uekert, principal research consultant for the National Center for State Courts. “But in most cases that’s not true. In most cases, a full guardianship is simply easier.”

And the adversarial nature of civil litigation, says Jennifer L. Wright, a professor at the University of St. Thomas School of Law, makes resisting full guardianship an uphill battle for elders.

“Putting them in the worst possible light is what the petitioner must do to win the case,” she says.

The burden of proof falls on the prospective ward, who rarely has a strong advocate, says Diane Menio, executive director of the Center for Advocacy for the Rights and Interests of the Elderly in Philadelphia.

“Often the attorney who’s appointed to be the attorney for the alleged incapacitated person is really just part of the team” setting up the guardianship, she says. “They don’t defend the person as they would in a criminal trial.”

Complicating the challenge for judges like Economou is an increased tendency for families to squabble over money, and resort to lawsuits and guardianship petitions as a way to keep elders from making their own financial decisions.

“In my practice, in the last five to seven years, we’ve seen a 30 to 40 percent uptick in these kinds of cases,” says Bernard A. Krooks, a New York elder law attorney considered a national expert in special needs planning. “What’s really driving it is, ‘Don’t spend my inheritance.' ”

A matter of money

On Sept. 22, Economou presided over the 12th hearing of Marie Winkelman’s case. Winkelman told her guardian she wanted this hearing to be open to the public, and wrote a letter to her attorney saying so. But that attorney, Audrey Bear, told a reporter she asked the judge to close the hearing anyway.

“I’m sorry,” Winkelman said to her supporters, as Bear led her into the courtroom.

Florida law states that a ward has the right to “have the hearing open or closed as she or he may choose.” The reporter mentioned this to Bear.

“So many of you are telling me about the Florida Statutes,” she said emphatically, before closing the courtroom door. “But none of you are lawyers!”

Bear did not respond to a request for further comment.

After a daylong hearing, in which Economou heard from people who had examined or treated Winkelman — people she referred to as “my enemies” — he finalized an order that kept her paid guardian in place, as a co-guardian of the person in addition to her cousin. Economou also placed Winkelman’s fortune under the control of a Sarasota trust company — the firm to which her stepson-in-law had moved all her money after initiating the case.

A hearing in November addressed — and appears to have settled — multiple arguments over the attorneys’ fees. Every time they all appeared at such a hearing, it cost Winkelman more money.

One of them, for example, charged $625 to attend two hearings that addressed objections to legal fees, according to court records — and an additional $4,675 to prepare for the all-day hearing in which Winkelman failed to have her rights restored.

As for Szychowski — the stepson-in-law whose petition plunged Winkelman into guardianship — the court has removed his powers of attorney and he no longer controls her assets. Attorneys representing him have been paid more than $154,000 by the trust company in charge of Winkelman’s finances.

Her last legal will still leaves what is left of her savings to Szychowski’s wife and sister-in-law. Only the trust company officers — people she does not know and did not select — can rewrite her will, with court approval.

Winkelman says she was willing to share the story of her guardianship because she hopes others can avoid her mistakes. Even Hitler’s Germany, she says, failed to prepare her for this fresh loss of innocence, in her 90th year of life.

“I was brought up in a family where we all loved each other. I was very naive, and I meant well,” she says. “Now I’m telling everybody — especially young people — don’t sign anything.”

Barbara Peters Smith

Barbara Peters Smith covers aging issues for the Sarasota Herald Tribune. She can be reached by email or call (941) 361-4936.

Last modified: February 9, 2015
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